INTRODUCTION I. THE MEANING OF THE ELECTIONS CLAUSE A. The Elections Clause in the Supreme Court B. The Philadelphia Convention and Its Aftermath C. State Ratifying Conventions II. THE ELECTIONS CLAUSE AND PARTISAN GERRYMANDERING A. English Practice B. Early Colonial and State Practice III. JUDICIAL REVIEW OF PARTISAN GERRYMANDERING UNDER THE ELECTIONS CLAUSE A. Ensuring a Republican Form of Government B. Judicial Enforcement of the Republican Guarantee C. Congressional Enforcement of the Republican Guarantee CONCLUSION
Twice in the last two decades, the Supreme Court has come within two votes of declaring partisan gerrymandering--the manipulation of district lines for partisan ends (1)--a nonjusticiable political question. Last Term, in Vieth v. Jubelirer, Pennsylvania Democrats challenged an alleged Republican gerrymander of the state's congressional districts. (2) Four members of the Court thought the question nonjusticiable, (3) and one, Justice Kennedy, thought it justiciable under the Equal Protection Clause but nonetheless rejected the plaintiff's claims. (4) Eighteen years earlier, in Davis v. Bandemer, a three-Justice plurality had held that a political group complaining of partisan gerrymandering--the Democratic or the Republican Party, as the case may be--could proceed with its equal protection claim, but only upon a showing that it had been "denied its chance to effectively influence the political process." (5)
Such a test being, in effect, impossible for a major political party to meet, Bandemer's promise that federal courts would be open to partisan gerrymandering claims has proven an empty one. Indeed, despite widespread belief that partisan gerrymandering impermissibly calcifies the democratic process, (6) complaints alleging it rarely survive motions to dismiss. (7) Thus, even while conceding that severe partisan gerrymanders are inconsistent with democratic principles, (8) Justice Scalia wrote for the Vieth plurality that "no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged." (9)
But a curiosity persists. While the Vieth plurality may be correct that the standard for judging partisan gerrymandering claims under the Equal Protection Clause has been filled with peril, the Court's own jurisprudence potentially supports analysis of such claims under a very different constitutional provision. The central difficulty of using the Equal Protection Clause in partisan gerrymandering cases is that equal protection analysis relies on evaluating the permissibility of a given classification; unlike racial classifications, the Court does not generally view political classifications as per se impermissible. (10) In Cook v. Gralike, (11) however, seven members of the Court, Justice Scalia among them, backed the proposition that Article I, Section 4 of the Constitution, which grants state legislatures the power to regulate the times, places, and manner of holding elections for Congress, (12) limits that power to so-called "'procedural regulations.'" (13) It does not grant states the authority to "attempt to 'dictate electoral outcomes.'" (14)
If this broad language is to be taken seriously, its reach is monumental. The Gralike Court had to decide whether the Missouri legislature could designate on the ballot whether congressional candidates supported a federal term limits amendment. Whether these actions represent "attempts to 'dictate electoral outcomes'" seems a much closer question than whether partisan gerrymandering does so. Even ardent defenders of the practice acknowledge that in purposefully manipulating district lines, state legislators hope to dictate electoral outcomes at least as much as proponents of pejorative ballot labels do. (15) Proponents and opponents of gerrymandering disagree only on the propriety of doing so.
Courts hearing gerrymandering cases have not generally taken judicial notice of the reviewing "standard" announced in Gralike--a blanket prohibition on attempts to influence the outcome of elections (16)--and even the wishful thinking of the academy has largely ignored the link between Gralike and partisan gerrymandering. (17) Indeed, the Vieth appellants themselves hardly pressed the point. Though they devoted a subsection of their merits brief to the limitations the Elections Clause imposes upon the states, they made no effort to articulate a gerrymandering standard consistent with those limitations, (18) instead relying primarily on the Equal Protection Clause. As Justice Scalia notes, the Elections Clause is invoked "only fleetingly" in the brief. (19) "It is ... asking too much," the brief concedes, "to expect line-drawers never to consider the goal of gaining partisan advantage in particular districts." (20)
Another reason why the Pennsylvania Democrats may have been wary of reading too much into the Elections Clause is that a prohibition on attempts to dictate electoral outcomes may do much more than ban the unilateral gerrymander they challenged. It also would appear to threaten "bipartisan" gerrymanders, in which the two major parties collude to strike a districting balance calibrated to protect incumbents. (21) Far more alarming to the traditional liberal opponents of partisan gerrymandering, (22) the intent standard announced in Gralike may, as applied to districting, threaten racial gerrymandering as well. It may in essence amount to a declaration that the biggest flaw of the Shaw v. Reno line of cases, (23) which declared it unconstitutional for states to use race as the predominant factor in drawing district lines, was that those cases did not go far enough. No less than partisan gerrymanders, racial gerrymanders are, baldly, attempts to dictate electoral outcomes. (24) Couple these results with the perceived practical hurdles of expunging politics from district line drawing, and the pro-Elections Clause constituency begins to dwindle significantly.
An "attempts" standard may for these reasons be a losing argument before the Supreme Court. But if we believe that the constitutionality of manipulating district lines for partisan advantage rests solely on the claim that manageable judicial standards are unavailing, then none of these reasons should relieve conscientious commentators of the duty of exposing that claim to rigorous scrutiny. As with any argument of constitutional dimension, Justice Stevens's argument for the Gralike majority, an extension of his majority opinion in U.S. Term Limits v. Thornton, (25) cannot be answered with a reflexive pragmatic response. Our common law constitutionalism requires us to extend logic and principle to their permissible limits before rejecting their less considered applications. Thus, this Note first asks whether the construction of the Elections Clause propounded in Gralike and U.S. Term Limits is historically accurate; second, whether applying it to partisan gerrymandering is appropriate; and, third, assuming such application is appropriate, how judges might actually go about it. Does the Elections Clause restrict states to procedural tinkering over voter registration forms and polling locations, committing them not to attempt to dictate electoral outcomes? Does the express textual commitment of oversight over such tinkering to the legislative branch--"the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators" (26)--limit, or perhaps even preclude, a role for judges in regulating district line drawing? (27) Finally, if judges do have a role to play, how, if at all, does judicial review under the Elections Clause, rather than under the Equal Protection Clause, lighten the burden of articulating a workable standard by which to police gerrymandering?
Answering these questions requires a backward look to determine what was motivating the Framers when they inserted Article I, Section 4 into the Constitution. This inquiry, which has not been conducted in the gerrymandering literature, will be the central focus of this Note. I will suggest that the Gralike Court's reading of the Elections Clause is accurate in its essentials. It is appropriate to view the Elections Clause as a limitation on the ability of state legislatures to manipulate the outcomes of congressional elections. The Court should focus more, however, on whether the legislature is in fact attempting to manipulate those outcomes rather than on whether its regulations are labeled as "procedural." While ascribing to the Framers an intent to eliminate partisan gerrymandering as we now know it is perhaps anachronistic, the Framers did anticipate that congressional oversight of electoral regulations would lead, through institutional checks and balances, to federal elections conducted in the spirit of republican government. Thus, the Elections Clause should be read in pari materia with the Guarantee Clause. (28) This Note concludes that although the Framers expected Congress, not judges, to police the constitutional commitment to republican values, a contemporary understanding of both the judiciary and of Congress dictates that identifying state legislative capture of federal elections falls within the judicial mandate.
The Note proceeds as follows: Part I discusses the historical roots and judicial application of the Elections Clause. It examines Supreme Court case law, discussions in and around the Philadelphia Convention, and the far more robust debates over the Clause in the state ratifying conventions. Part II briefly traces the history of partisan gerrymandering, from its English use and abuse through its common practice in nineteenth-century America, as well as the state constitutional norms that both encouraged and curtailed it. Part III applies to modern gerrymandering the "republican fairness" understanding of the Elections Clause that emerges from my discussion of its history. I first note that the recurring themes of that history parallel the themes animating the Guarantee Clause. I then suggest that the advent of national political parties tends to shift institutional competence to identify and condemn partisan gerrymanders away from Congress and toward the judiciary. I conclude Part III with a novel proposal for how the Court might effectively use its limited competence to police partisan gerrymanders, namely by using a writ of mandamus to compel Congress to fulfill its obligation under the Guarantee Clause to provide the states with a republican form of government.
I. THE MEANING OF THE ELECTIONS CLAUSE
This Part considers the fundamental purpose behind the Elections Clause. To provide doctrinal context, it begins with a survey of the Supreme Court's Elections Clause jurisprudence before proceeding into a historical inquiry. I consider the Constitutional Convention in Section B and the state ratification debates in Section C.
A. The Elections Clause in the Supreme Court
The Supreme Court has provided relatively little guidance as to the full scope of the Elections Clause. Where it has spoken on the Clause, as often as not it has failed to so with one clear voice. (29) Until U.S. Term Limits was decided a decade ago by a sharply divided Court, two vaguely contradictory strands of doctrine remained extant. In a line of cases beginning with Ex parte Siebold, (30) the Court had held that nothing in the Clause itself limits the ways in which either the states or the Congress may exercise their regulatory powers. Siebold involved the question of whether Congress had the power under Article I, Section 4 to create criminal penalties for violations of its election laws. Justice Bradley appeared to think it an easy question: Congress may regulate House and Senate elections as it pleases. (31) Although the Siebold Court had no cause to address whether the Elections Clause imposed any limitations on state governments independent of congressional regulation, nothing in the opinion suggests any such limitations. Wrote Justice Bradley, "If Congress does not interfere, of course [election regulations] may be made wholly by the State; but if it chooses to interfere, there is nothing in the words to prevent its doing so, either wholly or partially." (32)
The implication that the Elections Clause is not a self-executing limitation on state legislatures was not expressly repudiated for the next 115 years. (33) Justice Harlan followed Siebold most directly in his dissent in Wesberry v. Sanders, in which he argued that the Constitution does not require a principle of one person, one vote in federal elections. (34) The Elections Clause, he wrote, "states without qualification that the state legislatures shall prescribe regulations for the conduct of elections for Representatives and, equally without qualification, that Congress may make or alter such regulations. There is nothing to indicate any limitation whatsoever on this grant of plenary initial and supervisory power." (35)
Gralike and U.S. Term Limits imply quite the opposite, however, holding that a state's power to regulate congressional elections is in fact limited to "procedural" regulations. This doctrinal turn results from a contestable reading of the 1932 case of Smiley v. Holm. (36) In Smiley, the Court decided that the regulatory power the Elections Clause conferred upon the state legislatures was not exempt from the restrictions individual state constitutions imposed on lawmaking powers. (37) In discussing the text of the Clause, however, Chief Justice Hughes wrote for the Court,
It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. (38)
In Wesberry, Justice Harlan dismissed this language as essentially dicta, (39) and even if Chief Justice Hughes's list is binding, it hardly seems meant to be exhaustive. (40) Indeed, the preface that the Elections Clause was meant to be a "complete" code seems to foreclose an expressio unius construction of the enumerated items. For most of its precedential life, therefore, Smiley has stood more for the proposition that congressional oversight of state election regulations is comprehensive, (41) not that its exemplary list of election regulations is itself the upper limit on state legislative power.
Justice Stevens nevertheless extracted great mileage from this list in U.S. Term Limits and in Gralike. U.S. Term Limits involved a challenge to a referendum amending the Arkansas Constitution to impose term limits on the state's federal congressional delegation. (42) Although the opinion relies principally on Article I, Sections 2 and 3, which set forth the qualifications for membership in the House of Representatives and the Senate respectively, Justice Stevens sought additional support in Article I, Section 4. Relying on the idea that any power the Elections Clause grants to the states it must also grant to Congress, (43) Justice Stevens called it "unfathomable" to imagine that the Framers of the Constitution would have allowed Congress to set its own qualifications. (44) Therefore, "[t]he Framers intended the Elections Clause to grant States authority to create procedural regulations, not to provide States with license to exclude classes of candidates from federal office." (45) Stevens relied on only a small assortment of historical materials, namely the rhetoric of James Madison at the Constitutional Convention and Alexander Hamilton in Federalist No. 60. Six years after U.S. Term Limits, in Gralike, Justice Stevens marshaled the language of Smiley, (46) but no additional historical support, to further assert that the Elections Clause, without more, forbids states from "attempt[ing] to 'dictate electoral outcomes."' (47)
Both U.S. Term Limits and Gralike, like many Elections Clause opinions before them, fail to engage comprehensively the available historical materials. To be fair, such canvassing will not necessarily prove conclusive, nor will it necessarily prove Justice Stevens wrong. I do, however, think it important to examine with some rigor the context in which the Framers of the Elections Clause were operating if we are to credit so aggressive an interpretation as Gralike's. This inquiry is especially important given that the few opinions that confront the ratification debates tend to do so in the service of the view that Congress's oversight power provides the exclusive remedy for districting abuses within the states, (48) a view contrary to Justice Stevens's in Vieth and Bandemer. To wit, I devote the next two Sections to the Federal Constitutional Convention in Philadelphia and to the state ratifying conventions, in an effort to excavate as much meaning as possible from the Elections Clause.
B. The Philadelphia Convention and Its Aftermath
The power to elect---or not to elect--is the power to destroy, a truism flexible enough to provide fodder to either side in the great debate over the degree of confederation the United States of America was to instantiate in 1787. Anti-Federalists could claim that federal interference in electoral regulation was a slippery slope to the end of state sovereignty, whereas Federalists could argue that the federal government, like all of the states themselves, must have ultimate control over its own composition. The Elections Clause debate, and the concurrent sovereignty solution that emerged from it, was thus a microcosm of the larger federalism debate that continues to this day.
Federal control over congressional elections proved far less controversial at the Convention than in those of the several states. The Articles of Confederation, which self-consciously instituted more a "finn league of friendship" (49) than a united nation, may provide some clues as to why. The Articles left no doubt as to who controlled elections to the unicameral Congress: "For the more convenient management of the general interests of the united states, delegates shall be annually appointed in such manner as the legislature of each state shall direct...." (50) The delegates were to meet in Congress at a particular time and were to have certain term limits, (51) but the details of their …